Monday, August 20, 2007

Adapted from a play of the same name by Alan Sorkin, A Few Good Men follows the efforts of a team of lawyers defending two Marines accused of murdering a colleague at a US military base. The defense discovers that the death was the result of a ‘Code Red’ – illegal corporal punishment meted out to a soldier in need of discipline – administered upon the order of a senior officer.

This brings up a question of great relevance to international criminal law – what weight to attach to a defense of “superior orders” when these are claimed as the basis for action by a soldier. On the one hand a soldier’s duty to the military is considered paramount – the code for Marines is “Unit, Corps, God, Country”; at the same time, as a human being, he cannot be exempt from the moral duty to differentiate between right and wrong.

How to decide which of these duties must take precedence, has never been easy. Lhasa Oppenheim’s work is illustrative of this dilemma. In the first edition (1906) of his treatise on international law, he wrote “If members of the armed forces commit violations by order of their Government, they are no war criminals and cannot be punished by the enemy….”. In the sixth edition (1935) however, having witnessed the horrors of the first World War, he stated “The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime…[M]embers of the armed forces are bound to obey lawful orders only….”[1]

Indeed the film chooses to set this question against a more complicated backdrop than a situation of outright war would provide. The US military base is located in GuantanamoBay, the situation with Cuba is tense, and the marines are on the alert throughout. Just a few days before these developments, there was unauthorized firing between a Cuban and an American soldier. Thus without being ‘at war’, the Base is always in readiness for an attack and a cadet lacking discipline is unacceptable. It is to the credit of the film makers and Sorkin that they bring out all these nuances, but do not refrain from choosing one course of action as the correct one, with some excellent dialogue explaining why.

The various sub-plots of the film provide several other interesting points to ponder over:

The ethics of plea-bargaining – as Sgt Galloway ridicules Lt Kaffee for his conclusion of 44 cases in nine months through this device, and is herself dismissed as a spurious trial lawyer because of ‘too much passion and no street-smarts’;

The conflicts of jurisdiction between different departments of the same organization reflected through the initial tussle between Sgt Galloway, Office of Internal Affairs and Lt Kaffee (JAG Corps.) for control over the case;

The status of women in the military – indeed A Few Good Men has too few women of any significance, and the only one - Galloway - finds herself dismissed or ridiculed throughout. In fact, the script assigns most major faux pas to her character; and

The problems of hierarchy that may interfere with a military court martial – as a Lieutenant, it is a major step for Kaffee to build up a case against seniors in the army.

An issue which resonates throughout the film is that of the power of the phrase “national security”. In this film, made just after the end of the cold war, “national security” has an emotional pull and the military is not just a profession, but endowed with a special sanctity. This is articulated at different points in the movie by various characters. It is most poignant in the bewilderment of a senior marine who truly believes that the nature of the service he performs puts him above the rules in his execution of it, and who upon interrogation can only respond: ‘I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it. I'd prefer you just said thank you and went on your way.’

Despite the fact that the Code Red was administered to a marine, not a terrorist, the parallels with the post 9/11 America and the debate over the legality of the manner in which the war on terror is being conducted are evident.

[1]Christopher Henson, Superior Orders and Duress as Defenses in International Law and the International Criminal Tribunal for the Former Yugoslavia,http://www.unt.edu/honors/eaglefeather/2004_Issue/HensonC4.shtml.Now, the Rome Statute of the International Criminal Court provides a test: “The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful.”